Citation Nr: 0727574
Decision Date: 08/06/07 Archive Date: 09/11/07
DOCKET NO. 05-33 558 ) DATE AUG 06 2007
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUE
Entitlement to a higher level of special monthly compensation under provisions of 38 U.S.C.A. § 1114(m).
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. Hinton, Counsel
INTRODUCTION
The veteran served on active duty from November 1975 to November 1992.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada (RO), which denied the benefit sought on appeal.
The veteran testified at a hearing before the RO in June 2005, and at a Travel Board hearing before the undersigned at the RO in May 2006. In a written statement submitted at the time of the May 2006 hearing, the veteran withdrew an appealed claim that the RO had denied entitlement to special monthly compensation under provisions of 38 U.S.C.A. § 1114(m) due to “clear and unmistakable error.” That claim is therefore not before the Board on appeal.
FINDINGS OF FACT
1. The veteran has been granted service connection for diabetes mellitus type II, below the knee amputation, right; peripheral vascular disease with peripheral neuropathy, left; and peripheral vascular disease with peripheral neuropathy, right.
2. The veteran is not shown to have service-connected disability resulting in an anatomical loss or loss of use, of both hands, or of the left leg, or of the right or left arm; and he is not shown to have suffered any blindness.
CONCLUSION OF LAW
The criteria for an award of special monthly compensation (SMC) at a rate in excess of that authorized pursuant to 1114(k) are not met. 38 U.S.C.A. § 1114; 38 C.F.R. § 3.352 (2006).
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REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA’s duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim.
Under 38 U.S.C.A. § 5103, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, which information and evidence VA will seek to provide and which information and evidence the claimant is expected to provide. In compliance with 38 C.F.R. § 3.159(b), the notification should also include the request that the claimant provide any evidence in the claimant’s possession that pertains to the claim.
In this case, VA essentially satisfied the notification requirements of the VCAA by means of letters dated in October 2003 and August 2004. In those letters, the RO informed the veteran of the types of evidence needed in order to substantiate his claim of entitlement to additional special monthly compensation under provisions of 38 U.S.C.A. § 1114(m) and 38 C.F.R. § 3.350(c); and thus informed the veteran of the information and evidence not of record that was needed to substantiate the claim on appeal. VA has also informed the veteran of the types of evidence necessary to establish such claims, the division of responsibility between the veteran and VA for obtaining that evidence, and VA requested that the veteran provide any information or evidence in his possession that pertained to such claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).
Although the crux of the veteran’s claim depends on an asserted meaning of 38 U.S.C.A. § 1114(m) which is at variance with the conclusions of this decision, the veteran has received adequate and correct notice of that provision. He has been provided with correct information of the evidence needed to substantiate the claim and as the veteran has had the opportunity to participate effectively in the processing of his claim, that is, the opportunity to submit evidence or argument on the claim, the purpose of the VCAA notice was not frustrated and the veteran was not prejudiced by any possibly remaining defect in the VCAA notice. A remand for additional notice today would serve no useful purpose.
The VCAA requires that a notice in accordance with 38 U.S.C. § 5103(a) must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits, even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004).
To the extent that any required notice was not provided prior to the initial unfavorable adjudication, in a case involving the timing of the VCAA notice, the appellant has a right to a VCAA content-complying notice and proper subsequent VA process. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). After VCAA compliant notice was provided, the appellant was then afforded an opportunity to respond. He has also described the basis for his claim in statements. The claim was subsequently readjudicated and the appellant was provided a statement of the case in July 2005. Under these circumstances, the Board determines that the notification requirements of the VCAA have been satisfied. Id; Quartuccio v. Principi, 16 Vet. App. 183 (2002)
Additionally, where the claim involves a disability rating and effective date, as in this case, the VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to specifically include a requirement of notice that a disability rating and an effective date will assigned if a disability, to include on an extraschedular basis, is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Despite any inadequate notice provided to the veteran regarding the assignment of an effective date, the Board finds no prejudice to the veteran in processing with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In that regard, the a higher special monthly compensation under 38 U.S.C.A. § 1114(m) is denied here. Therefore, the question of whether the veteran was provided proper notice as to effective dates is moot.
In sum, the veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Also, the actions taken by VA have essentially cured any defect in the VCAA notice. The purpose behind the notice requirement has been satisfied, because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claim.
II. Claim for Special Monthly Compensation Under 38 U.S.C.A. § 1114(m)
The veteran is claiming entitlement to a higher level of special monthly compensation (SMC) under provisions of 38 U.S.C.A. § 1114(m). He is currently in receipt of special monthly compensation as provided under 38 U.S.C.A. § 1114(k) and 38 C.F.R. § 3.350(a) “on account of anatomical loss of one foot” effective from November 12, 2001. The RO granted that benefit in an April 2002 rating decision, after the veteran underwent right below knee amputation in November 2001. The RO determined that the amputation was related to the veteran’s service-connected diabetes mellitus type II.
Subsequently in August 2003, the veteran raised a claim of entitlement to a higher level of special monthly compensation (SMC) under provisions of 38 U.S.C.A. § 1114(m). The veteran based his claim on the assertion that due to complications of his right lower extremity amputation, entitlement under 38 U.S.C.A. § 1114(m) is warranted.
He is not claiming entitlement under provisions of 38 U.S.C.A. § 1114(l). That is, he is not claiming, nor does the evidence show, that he has any service-connected disability resulting in: the anatomical loss or loss of use of both feet, or of a hand and a foot, or any blindness condition. Nor is he claiming that he is permanently bedridden or so helpless as to be in need of regular aid and attendance so as to implicate consideration of entitlement to special monthly compensation under provisions of 38 U.S.C.A. § 1114(l). 38 C.F.R. § 3.350(b).
The veteran essentially argues, however, that because of the condition of his right lower extremity, with amputation below the knee, he is entitled to 38 U.S.C.A. § 1114(m). He is not claiming that he has any other condition resulting in anatomical loss or loss of use of any other extremity, or that he has blindness, so as to otherwise be entitled to benefits at the level provided under 38 U.S.C.A. § 1114(m). Nor does a review of the record show any medical evidence establishing that as a result of service-connected disability, he has any condition of one or both of the arms or of the left leg, or of any blindness, which would implicate 38 U.S.C.A. § 1114(m).
The transcripts of the two hearings at which the veteran testified show that the central point of the veteran’s argument is that under 38 U.S.C.A. § 1114(m), the condition of his right lower extremity, with the amputation below the knee with complications, is sufficient to warrant entitlement under that section. Those transcripts show that there was a discussion of the intended meaning of the provision.
In law, language needs to be as precise as possible. Ambiguity invites conflicting interpretations. 38 U.S.C.A. § 1114(m) provides that
“if the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both hands, or of both legs at a level, or with complications, preventing natural knee action with prostheses in place, or of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prostheses in place, or has suffered blindness in both eyes having only light perception, or has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance, the monthly compensation shall be $3,073”.
The compact layout of the above provision—with its serial commas separating the several terms—can give the appearance of ambiguity with respect to the intended meaning of 1114(m). However, a careful reading of the provision shows that there is no ambiguity. For illustrative purposes, 38 U.S.C.A. § 1114(m) is presented below in a less compact layout which shows clearly that the intended meaning of 38 U.S.C.A. § 1114(m) is unambiguous. As shown in the indented section below, without changing any word or comma, the intent of the provisions of 1114 (m) is obvious and unmistakable. Certain words are italicized and/or underlined to emphasize relationships within the provision.
“if the veteran, as the result of service-connected disability,
has suffered the anatomical loss or loss of use
of both hands, or
of both legs at a level, or with complications, preventing natural knee action with prostheses in place, or
of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prostheses in place, or
has suffered blindness in both eyes having only light perception, or
has suffered blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance,
the monthly compensation shall be $3,073”.
38 U.S.C.A. § 1114(m).
Here it is clear that to warrant entitlement to compensation at the rate provided under 38 U.S.C.A. § 1114(m), the veteran’s disability picture must meet one of three possible general categories of conditions listed—that the veteran has suffered either (1) the anatomical loss or loss of use of two extremities; (2) blindness in both eyes having only light perception; or (3) blindness in both eyes, rendering such veteran so helpless as to be in need of regular aid and attendance. The veteran is not shown to be blind, nor is he claiming to be. Nor is he claiming to be in need of regular aid and attendance. Thus, the latter two general categories of conditions, pertaining to blindness, do not apply.
The remaining conditions involve whether the veteran has suffered an anatomical loss or loss of use (1) of both hands; (2) of both legs at a level, or with complications, preventing natural knee action with prostheses in place; or (3) of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prostheses in place.
The veteran has argued that in (2) above, the phrase “or with complications, preventing natural knee action with prostheses in place,” provides a basis for granting entitlement if only one leg is involved. The provision clearly shows, however, that the antecedent clause “If the veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use” is followed by the clause “of both legs at a level”. Following that, the succeeding clause “or with complications, preventing natural knee action with prostheses in place,” only provides an alternative to the condition “at a level”. Both alternative conditions, however, require involvement of both legs. If the intended meaning was consistent with the veteran’s claim that only one leg needed to be involved, the latter phrase would have used the word “prosthesis”, instead of “prostheses” as used in the provision. See also 38 C.F.R. § 3.350(c)(ii).
Under 38 U.S.C.A. § 1114(m), entitlement under condition (2) above is warranted if there is anatomical loss or loss of use of both legs, either (a) at a level or (b) with complications; and either of these two must prevent natural knee action with prostheses in place. Both of these two conditions (a and b) require that there is either anatomical loss or loss of use of both legs.
The veteran’s argument with respect to (3) above “of one arm and one leg at levels, or with complications, preventing natural elbow and knee action with prostheses in place”—that only one leg involvement is required—is flawed for the same reasons.
In sum, to warrant entitlement under 38 U.S.C.A. § 1114(m), the veteran must have suffered the anatomical loss or loss of use either (1) of both hands, (2) of both legs, or (3) of one arm and one leg. In other words, this level of special monthly compensation must involve the prescribed loss and include two extremities. Further, if the involvement is of both legs, or of one arm and one leg, then a further condition is that the loss (anatomical or of use) must be either (1) at a level, or (2) with complications, which for either, prevent natural action of the respective joints with prostheses in place at both joints.
In other words, the veteran must have amputations or loss of use of either (1) both legs, or (2) one arm and one leg; and if either of these two conditions are met, then that condition (for both extremities) must be either (1) at a level preventing natural action of the joints with prostheses in place, or (2) with complications preventing natural action of the joints with prostheses in place. See also 38 C.F.R. § 3.350 (c) for ratings under 38 U.S.C.A. § 1114(m).
Here, the veteran has an anatomical loss (amputation) of the right leg below the knee. There is no evidence of an anatomical loss or loss of use of any other extremity. Further, the veteran is not asserting that he experienced anatomical loss or loss of use of an upper extremity at a level, or with complications, preventing natural elbow action; or anatomical loss or loss of use of the left lower extremity at a level, or with complications, preventing natural knee action with a prosthesis in place due to his service-connected disability. Therefore, there is no basis for granting a higher level of special monthly compensation under provisions of 38 U.S.C.A. § 1114(m).
ORDER
Entitlement to a higher level of special monthly compensation under provisions of 38 U.S.C.A. § 1114(m) is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans’ Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.”
If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance:
· Appeal to the United States Court of Appeals for Veterans Claims (Court)
· File with the Board a motion for reconsideration of this decision
· File with the Board a motion to vacate this decision
· File with the Board a motion for revision of this decision based on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
· Reopen your claim at the local VA office by submitting new and material evidence.
There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information, as well as information about free representation through the Veterans Consortium Pro Bono Program (toll free telephone at: (888) 838-7727), is also provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code.
In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board.
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